The Outsiders

The perpetrators of the september 11, 2001 terrorist attacks took advantage of various components of the U.S. immigration system to facilitate their movement into, travel in, and exit from the country. In the aftermath of 9/11, the U.S. government, particularly the Justice Department, used the immigration system as a blunt instrument in fighting the war on terror by expanding detention and deportation, tracking and restricting entry, and generally reducing the protections available to the foreign-born. In “Securing Our Borders: Post-9/11 Scapegoating of Immigrants,” the Florida Immigrant Advocacy Center (FIAC) concludes that recent policy changes not only have failed to enhance security but also have had particularly detrimental effects among immigrants and asylum seekers, who are among the most vulnerable members of U.S. society. The report implicates policies nationwide, but draws heavily on Florida-based examples.

FIAC's mission is to protect and promote the basic human rights of immigrants of all nationalities. As such, the report has an inherent bias to overcome in establishing its credibility as a neutral and reliable source for information. While there are times in which its findings are intermingled with advocacy (for instance, regarding the need for comprehensive immigration reform) or with extraneous information (such as the economic contributions of immigrants), FIAC accurately depicts post-9/11 policy changes and their impact on immigrant communities. The authors drew on a range of sources in conducting their research, including U.S. government reports, media reports, and reports of human rights groups, as well as interviews, meetings, and correspondence. They also ran into some roadblocks–notably, the Bureau of Immigration and Customs Enforcement declined to provide them with updated statistics or to clarify agency positions on certain issues, despite multiple requests.

The most compelling chapters are those detailing the handling of asylum seekers and the discriminatory treatment of South Asian, Muslim, and Arab immigrants. For instance, the National Security Entry-Exit Registration System (NSEERS) required foreign-born males from particular countries in the Middle East and South Asia who were arriving in, or already present within, the United States to register with the government and report at regular intervals.

Even those who are not immigrant advocates would be unsettled by these accounts. While there may be minimal public sympathy for illegal immigrants who are deported, Americans tend to support the protection of those fleeing persecution and to oppose broad-brush federal policies that target and profile entire populations. Among the most troubling of the report's findings are the disparity in treatment depending on one's nationality or airport of arrival (particularly for asylum seekers), and the harsh treatment even of children. Detention is required for all Haitian asylum seekers (and Haitians only) on “national security grounds,” without individual review on the merits of each case. (Then-Attorney General John Ashcroft justified this policy on the basis of a State Department warning that Haiti had become “a staging point” for non-Haitians, including Pakistanis and Palestinians, to enter the United States. Another concern was that their release could prompt a mass influx of Haitian refugees that would threaten national security by diverting Immigration and Naturalization Service (INS) and Coast Guard resources away from counter-terrorism and homeland security efforts.) In South Florida, asylum seekers of all nationalities arriving with fake papers are prosecuted for attempted entry with false documents by the U.S. attorney's office, even if they have no suspected ties to terrorists.

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As a result, even those who are granted asylum–and who needed false documents to flee persecution in their home countries–end up with a criminal record. Miami is also one of three cities nationwide (the others are Anchorage and Detroit) where asylum seekers who have passed the “credible fear” test–that is, they have cause to be concerned about their safety should they return home–are required to wear electronic monitoring devices (EMDs) as a prerequisite to being released pending their asylum hearing.

A second worrisome trend that emerges throughout the report is a decline in the information made publicly available. In one example, FIAC submitted a Freedom of Information Act request for records relating to the EMD program and 15 months later still had not received a response. This reluctance to share information is not limited to the federal level. FIAC has been waiting for two years for information from the Miami Beach Police Department on individuals who they had turned over to federal immigration authorities. Transparency has been reduced in the courts as well, as Ashcroft required immigration judges to close certain hearings to the public, further specifying that the hearings should not even be listed on the court docket and that no one else (including family members) be allowed in the courtroom.

FIAC's report also highlights the lack of administrative capacity to implement some of the new policy changes. The result has been a waste of institutional resources squandered on unnecessary investigations and detentions. For instance, sudden Justice Department attention to the long-standing (and long-ignored) requirement that non-citizens report address changes led to a massive influx of paperwork that could not be processed and ended up in storage. The additional background checks required following 9/11–combined with the workload of the NSEERS–required the INS to cut its interview schedule by half, delaying reviews of legal permanent resident applications. At the state level, when Florida increased restrictions on driver's licenses, only certain motor vehicle offices were authorized to issue the new licenses. But even these officials lacked adequate training to recognize altered or counterfeit documents.

The report's conclusions and recommendations are directed toward two audiences: the federal government (the Bush administration and Congress) and state and local officials in Florida. To the former, FIAC urges outreach to immigrant communities; a review of detention policies for families and children; judicial oversight of closed hearings and basic due process for arrested immigrants; assurances that asylum seekers have full and equal opportunity to make their claims; and the retention of federal jurisdiction over civil immigration matters. To the latter, the report calls upon state officials to ensure adequate training of Florida law enforcement officers cross-designated as immigration agents; urges the end of racial profiling by the Florida police; advocates reinstatement of the parole policy that releases asylum seekers who have “credible fear”; and highlights alternatives to criminal prosecutions of asylum seekers who used false documents.

“Securing Our Borders” provides an important public record that can be used as a baseline for future study. The report includes so many instances of arbitrary decisions, discrimination, and unnecessarily harsh treatment that one would be hard-pressed to explain them all as individual aberrations. In just one example, a Miami INS officer told an immigration lawyer he had orders to detain all Arab asylum seekers, even if they were not a security risk, and that his office had no authority to release any Arabs who had been detained.

What is unclear is whether immigrants and asylum seekers were deliberately being scapegoated or whether they were simply unlucky enough to have borne the disproportionate impact of poorly developed and implemented policies that were put into place for lack of more well-refined, targeted counterterrorism approaches. Even Inspector General reports have found that the Justice Department and FBI went beyond reasonable measures in response to 9/11, resulting in the indiscriminate targeting of the foreign-born. But the intentions behind the policies matter little to those who have been unfairly treated. The FIAC report makes a strong case for improving these policies and fine-tuning the balance between enhancing security and protecting civil liberties.